7th Circuit Rules That Some Claims In Whipsaw ERISA Action Are Time-Barred

    CHICAGO - The Seventh Circuit U.S. Court of Appeals on Aug. 9 ruled that the statute of limitations barred claims by certain cash balance plan participants who alleged that the plan violated the Employee Retirement Income Security Act in calculating lump-sum distributions paid to participants who left their employment before reaching normal retirement age (Lawrence G. Ruppert, et al. v. Alliant Energy Cash Balance Pension Plan, No. 12-3067, 7th Cir.; 2013 U.S. App. LEXIS 16572).

    National Labor Relations Board Announces 5 Senate-Confirmed Members

    WASHINGTON, D.C. - The National Labor Relations Board (NLRB) on Aug. 12 announced that for the first time since Aug. 21, 2003, it is composed of five Senate-confirmed members.

    Multidistrict Litigation Panel Refuses To Consolidate Pilot Flying J Cases

    WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation on Aug. 8 refused to consolidate eight suits and potential tag-along actions regarding a truck stop company's alleged scheme of withholding diesel fuel price rebates and discounts (In Re: Pilot Flying J Fuel Rebate Contract Litigation, MDL No. 2468, JPMDL; 2013 U.S. Dist. LEXIS 112360).

    Defense Motions To Dismiss Granted In Part In Action For Pesticide Contamination

    HONOLULU - Defense motions to dismiss a class action lawsuit alleging that dust and pesticide contamination from a crop research center is causing property damage and personal injuries were granted in part on Aug. 9; the plaintiffs have until Sept. 6 to file a third amended complaint in the U.S. District Court for the District of Hawaii to correct defects identified in certain claims dismissed without prejudice (Jim Aana, et al. v. Pioneer Hi-Bred International Inc., et al., No. 12-231 $(consolidated$), D. Hawaii; 2013 U.S. Dist. LEXIS 112851).

    Doe Defendant's Motion To Quash Discovery Denied; Judge Finds Information Needed

    DENVER - Finding that the sought after identifying information of an alleged Internet file-sharer is needed for a copyright holder to pursue infringement claims, a Colorado federal magistrate judge on Aug. 7 denied a Doe defendant's motion to quash a discovery subpoena served on his or her Internet service provider (ISP) (Voltage Pictures LLC v. Does 1-22, No. 13-cv-01121, D. Colo.; 2013 U.S. Dist. LEXIS 111138).

    Another Compounding Pharmacy Recalls Products After 15 Patients Develop Infections

    SILVER SPRING, Md. - Specialty Compounding LLC of Cedar Park, Texas, has voluntarily recalled all of its sterile compounded drugs after 15 patients in two Texas hospital developed bacterial blood infections after receiving the products, the Food and Drug Administration announced Aug. 11.

    Judge Says Plaintiff Raises No Reason To Alter Dismissal On Res Judicata

    KANSAS CITY, Mo. - A Missouri federal judge has denied a plaintiffs' motion to alter or amend his dismissal of tobacco wrongful death claims on the doctrine of res judicata, saying in an Aug. 12 decision that a court has broad latitude to invoke the doctrine (Christi Thompson, et al. v. R. J. Reynolds Tobacco Co., et al., No. 4:12-cv-01326, W.D. Mo.).

    9th Circuit: Data From Monitoring Stations Can Establish Liability

    SAN FRANCISCO - A Ninth Circuit U.S. Court of Appeals panel on Aug. 8 ordered a federal judge in California to determine the appropriate remedy for the excessive discharges of polluted stormwater by the County of Los Angeles after finding that data from monitoring stations downstream from the discharge points can be used to determine liability for violations of the Clean Water Act (CWA) (Natural Resources Defense Council v. County of Los Angeles, et al., No. 12-56017, 9th Cir.; 2013 U.S. App. LEXIS 16416).

    N.Y. Federal Judge Partially Decertifies Assistant Store Manager Overtime Class

    NEW YORK - A New York federal judge on Aug. 8 partially decertified a class of drugstore assistant store managers (ASM) seeking overtime pay for hours worked in excess of 40 per week (Mani Jacob, et al. v. Duane Reade, Inc., et al., No. 11-160, S.D. N.Y.; 2013 U.S. Dist. LEXIS 111989).

    Federal Judge Finds For Insurer In Suit Seeking Mortgage Recording Coverage

    MINNEAPOLIS - A federal judge in Minnesota on Aug. 12 entered judgment in favor of an insurer in a credit union's suit seeking coverage for two delinquent loans three days after finding that it is unambiguous that no other entity gained a superior security interest as a result of the credit union's employees' errors (Northern States Power St. Paul Credit Union v. CUMIS Insurance Society, Inc. a/k/a CUNA Mutual Insurance Agency Inc., No. 13-0385 $(JRT/LIB$),Civil No. 13-0387 $(JRT/LIB$), D. Minn.; 2013 U.S. Dist. LEXIS 112319).

    9th Circuit: Razor Maker's 'Incredible Comfort' Claims Are Puffery

    SAN FRANCISCO - A razor manufacturer's claim that one of its products provides "incredible comfort" is puffery and does not suggest superiority over another of its products, a Ninth Circuit U.S. Court of Appeals panel held Aug. 9 in affirming dismissal of California unfair competition law (UCL) claims (Ryan Edmundson, et al. v. The Procter & Gamble Co., No. 11-56664, 9th Cir.).

    Justice Says Insured Did Not Waive Right To Subrogate To Insurer Against Subcontractor

    JAMAICA, N.Y. - A hotel owner did not waive subrogation clauses regarding damages to pre-existing construction, a New York trial justice found Aug. 7, denying summary judgment to a subcontractor against a subrogated insurer (Paris Suites Hotel Inc., et al. v. Seneca Insurance Company Inc. and Archer A. Associates Inc., No. 28184/09, N.Y. Sup., Queens Co.; 2013 N.Y. Misc. LEXIS 3451).

    Trespass, Diminution Claims Dismissed In Part Against Gas Extraction Company

    COLUMBUS, Ohio - Trespass and property value diminution claims against a natural gas pipeline company were dismissed in part on Aug. 9 in the U.S. District Court for the Southern District of Ohio because the plaintiffs incorporated a limited liability company and transferred ownership of their farm to the company; the plaintiffs lack standing to seek equitable relief or damages from the gas company after the date of the transfer, according to the presiding judge (Charles R. Ogle, et uxor v. Columbia Gas Transmission, et al., No. 10-1059, S.D. Ohio; 2013 U.S. Dist. LEXIS 112557).

    Couple Appeals Ruling In Asbestos Replacement Parts Ruling

    LOS ANGELES - A couple pursuing asbestos-exposure claims on Aug. 9 indicated that they will appeal a ruling finding insufficient evidence on which to a find a manufacturer liable for replacement asbestos parts (John H. Boyd Jr. and Mary E. Boyd v. Air & Liquid Systems Corp., et al., No. 13-436, C.D. Calif.).

    Hawaii Panel Vacates No Coverage Ruling In Dispute Arising From Dam Collapse

    HONOLULU - The Hawaii Intermediate Court of Appeals on Aug. 7 vacated and remanded a finding that pre-breach commercial general liability insurers and have no duty to defend their insured against one of three underlying lawsuits stemming from the breach of the Kaloko Dam on Kaua'i, Hawaii, further finding that the lower court erred in dismissing the insured's claims against its property and excess insurers (C. Brewer and Company Ltd. v. Industrial Indemnity Co., et al., No. 28958, Hawaii App.; 2013 Haw. App. LEXIS 472).

    Obligation Is Not 'Consumer Debt,' Federal Judge Finds

    CHICAGO - A federal judge in Illinois on Aug. 8 dismissed a debt-collection suit filed against a law firm, finding that the consumer's obligation in question is not a consumer debt as defined by the Fair Debt Collection Practices Act (FDCPA) (Pete Vasilakos vs. Blitt and Gaines P.C., No. 12-5526, N.D. Ill.; 2013 U.S. Dist. LEXIS 112228).

    New Jersey Federal Judge Denies Motion To Amend Health Care Reimbursement Suit

    NEWARK, N.J. - A New Jersey federal judge in an Aug. 7 unpublished opinion denied an ambulatory surgery center's request to amend its complaint against a health plan for wrongful denial of benefits, saying amendment would be futile (Montvale Surgical Center v. Horizon Blue Cross Blue Shield Of New Jersey Inc., et al., No. 12-4166, D. N.J.; 2013 U.S. Dist. LEXIS 111771).

    2nd Circuit: 4th Amended TCPA Complaint Was Filed 30 Days Too Late

    NEW YORK - The four-year statute of limitations under federal law, rather than two-year statute under state law, applies to class complaint filed in federal court under the Telephone Consumer Protection Act (TCPA), but the tolling rule, as it was announced in American Pipe & Construction Co. v. Utah (414 U.S. 538 $(1974$)), extends only through the denial of class status in the first instance by the district court, the Second Circuit U.S. Court of Appeals ruled Aug. 8, upholding a judgment of dismissal based on untimeliness (Earle Giovanniello v. ALM Media, LLC, No. 10-3854, 2nd Cir.; 2013 U.S. App. LEXIS 16394).

    4th Circuit Panel: Judge Properly Excluded Evidence From Injury Case

    RICHMOND, Va. - The Fourth Circuit U.S. Court of Appeals on Aug. 8 upheld a federal judge's decision to exclude some documents presented as evidence in a personal injury action, ruling that the trial court did not abuse its discretion (Cathy Morris v. Dorma Automatics Inc., et al., No. 13-1155, 4th Cir.; 2013 U.S. App. LEXIS 16431).

    Issues Remain In Debt-Collection Suit, Federal Judge Finds

    MINNEAPOLIS - A federal judge in Minnesota on Aug. 9 granted in part and denied in part a law firm's motion for summary judgment in a debt collection suit, finding that there are genuine issues of material fact regarding the firm's violations of certain provisions of the Fair Debt Collection Practices Act (FDCPA) (Eric Backlund, et al. v. Messerli & Kramer P.A., et al., No. 12-0808, D. Minn.; 2013 U.S. Dist. LEXIS 112311).

    7th Circuit Addresses Class Certification In 401(k) Fiduciary Duty Breach Case

    CHICAGO - The Seventh Circuit U.S. Court of Appeals on Aug. 7 reversed a district court's denial of class certification to participants in 401(k) plans on their claims that the plans' fiduciaries breached their duties under the Employee Retirement Income Security Act by investing in a stable-value fund (SVF) that did not result in a rate of return that was sufficient for a retirement asset (Anthony Abbott, et al. v. Lockheed Martin Corporation, et al., No. 12-3736, 7th Cir.; 2013 U.S. App. LEXIS 16376).

    JPMDL Refuses To Create New MDL For Gulf Oil Spill Suits

    WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on Aug. 9 refused to create a second multidistrict litigation for suits brought by individuals, businesses and government entities who have opted out of settlement agreements with BP Exploration & Production Inc. to resolve claims stemming from the explosion of the Deepwater Horizon oil rig and ensuing oil spill in the Gulf of Mexico, finding that it would lead to duplicative discovery and redundant pretrial proceedings (In re: Oil Spill by the Oil Rig "Deepwater Horizon" In the Gulf of Mexico on April 20, 2010 $(No. II$), No. 2457, JPMDL).

    Federal Judge Dismisses Putative Consumer Class Of Light Cigarette Purchasers

    MILWAUKEE - Saying it is impossible to know whether individual consumers believed light cigarettes were any safer than regular ones when they made their purchasing decisions, a Wisconsin federal judge on Aug. 8 dismissed a putative statewide consumer class (Charles Wyatt, individually and on behalf of a class of others similarly situated v. Philip Morris USA Inc., No. 09-C-0597, E.D. Wis.).

    6th Circuit: Administrator Properly Applied Coordination-Of-Benefits Provision

    CINCINNATI - A health plan administrator did not violate the Employee Retirement Income Security Act by interpreting the coordination of benefits (COB) provision of the plan to deny payment of benefits for medical expenses that were paid by an individual automobile insurance policy, the Sixth Circuit U.S. Court of Appeals affirmed Aug. 8 (Richard Barron, Jr. v. Blue Cross Blue Shield of Michigan, No. 12-2351, 6th Cir.; 2013 U.S. App. LEXIS 16583).

    2nd Circuit: Lack Of Financial Incentive Doesn't Invalidate Arbitration Agreement

    NEW YORK - Under the U.S. Supreme Court's ruling in American Express Co. v. Italian Colors Restaurant (133 S. Ct. 2304 [2013]), an employee cannot invalidate a class action waiver provision in an arbitration agreement when the waiver removed the financial incentive for her to pursue a claim under the Fair Labor Standards Act (FLSA), the Second Circuit U.S. Court of Appeals ruled Aug. 9 (Stephanie Sutherland, et al. v. Ernst & Young LLP, No. 12-304, 2nd Cir.; 2013 U.S. App. LEXIS 16513).